Arbitration, Litigation & Commercial
Transnational Arbitration at a Crossroad Between Various Laws, Rules & Conventions
14 June 2020
A transnational, or an international, arbitration, unlike a domestic or national arbitration—due mainly to different nationalities, places of residence or places of business of parties to an arbitration agreement, involvement of the interests of international trade, nexus of the contract or dispute with more than one territory, location of the seat of arbitration outside the country in which the parties have their places of business or the combination of any of these criterions—involves more than one system of law or legal rules. Moreover, the special needs of transnational arbitration, for example, specialised knowledge and expertise in commercial or non-commercial sectors which may be required to solve the disputes, to achieve greater autonomy from domestic courts or tribunals, to harmonise laws governing international arbitration at international level, to provide protection to the weaker party, etc., also gave birth to numerous conventions, treaties and non-legal institutional and non-institutional arbitration rules. These various laws, rules and conventions may supplement or supplant one another at different stages of a transnational arbitration. They may coexist with equal potentials to be applied alternatively by arbitrators, arbitral institutions, courts or tribunals. In this article, I will discuss the material scope of these laws, rules and conventions and their interplay.
The Scope and Interaction of the Laws, Rules and Conventions
For the present purpose, it will be convenient to define the terms ‘the law’, ‘system of law’ and ‘rules’ at the very outset of the discussion so that we may distinguish them from each other. This distinction, as will be discussed later in this article, bears very important theoretical and practical consequences as far as international arbitration is concerned.
The term ‘the law’ simply means national law or state created legal rules, e.g., English law, Swiss law, French law, USA law, etc. A ‘system of law’, in contradistinction to isolated legal rules or general principles, encompasses all laws, regulations, etc. enacted by or on behalf of the state and interpreted and applied by the courts. It also includes binding customs within a particular country. These all laws, regulations, recognised customs, binding precedents, etc., being closely linked, form an organic legal system within a state.
The term ‘rules’ include both ‘rules of law’ and non-legal rules. ‘[T]he term “rules of law” denotes a wider notion. It may not only mean a particular national law, but may, instead, mean general principles of law, lex mercatoria, any transnational concepts of law, principles and notions reflected in international conventions, or other principles of law such as those established by UNIDROIT in 1994.’1 The non-legal rules include institutional and non-institutional arbitration rules made by private organisations, for example, the ICC rules, the LCIA rules, the AAA rules, the IBA rules, the UNCITRAL arbitration rules, etc.
We can identify at least the following five different systems of law which may govern various aspects of a transnational arbitration:
- The law applicable to the capacity of the parties.
- The law governing the arbitration agreement.
- The law governing the arbitration.
- The law governing the substantive issues in dispute.
- The law governing recognition and enforcement of international arbitral awards.
Before proceeding further, it is desirable to appreciate the importance of the doctrine of parties’ autonomy in international contracts. It is an established principle of international law that parties to an international contract are free to choose the applicable law governing the contract and/or forum. It increases certainty and efficiency in international transactions by reducing “international risks”.2 Since in international contracts, several fora are available and several laws are potentially applicable, it may result in overlapping between myriad judicial and legislative jurisdictions. The substantive and procedural rules differ from one state to the next. Identical rules may be interpreted differently by different courts. Resultantly, a contract may be valid in one place and void in another.3 The parties, therefore, should be able to avert such risks and uncertainties through an agreed choice of law and/or forum. The same autonomy of the parties has been recognised in case of international arbitration agreement in most of national laws and arbitration rules. Therefore, parties to an international arbitration agreement are free to choose the law or laws applicable to various aspects of an international arbitration. The parties’ autonomy reduces, not necessarily eliminates, risks and uncertainties in the field of international arbitration.
1. The Law Applicable to the Capacity of the Parties
The parties to an arbitration agreement, like in any other type of an agreement or contract, must be competent to enter into the agreement under the law applicable to them. The incapacity of the parties can be a ground to challenge the validity of the arbitration agreement and of arbitral awards.4 The law applicable to the capacity of the parties is determined in accordance with general conflict of law rules. These rules generally consider a party’s nationality, place of incorporation, main place of business, domicile or residence to be the relevant connecting factors. The issue as to the capacity of the parties to enter into an arbitration agreement is rarely raised in practice, but the problem may be very acute in cases where a state or state-controlled entity is a party to the arbitration agreement and it wants to avoid the arbitration by invoking its incapacity under its own law to enter into the agreement. In such cases, a state is generally not allowed to do so.
2. The Law Governing the Arbitration Agreement
One of the consequences of the separability of an arbitration agreement/clause is that it may be governed by a different law from that which governs the main (substantive) contract in which it is embedded. The law(s) applicable to an arbitration agreement deals with the issues concerning the existence, validity, scope or performance of the agreement. There may be different laws dealing with different aspects of the agreement.5 But it is far from clear that which law will govern a particular aspect of the agreement at a particular stage. There is a variety of factors which give rise to such a dismal swamp.6 Even where the parties have expressly chosen a law to govern the arbitration agreement (whether different from that applicable to the substantive contract or not), it is not certain, as will be discussed later in this article, that all the issues pertaining to the existence and validity of the agreement will be determined in accordance with the same law.
A. The Law Applicable to the Formal Validity
Most conventions and national laws directly regulate the formal validity of the arbitration agreement (requirements such as an arbitration agreement must be in written form, to be signed, etc.).7 Although they help in determining the law applicable to the formal validity but do not eliminate all the problems because the rules differ as to the required form. Therefore, it has to be determined that which rule is actually applicable. The same issue may be determined differently under different laws at different stages. For an example A and B enter into an oral agreement which refers to a document containing an arbitration clause. It is not decided that which law will govern the arbitration clause. Subsequently a dispute arises between A and B relating to the agreement. In contravention of the arbitration clause, A initiates legal proceedings against B in a court of country X, which is not a signatory to the New York Convention. B resists court proceedings on the basis of the clause. A disputes the formal validity of the clause. The court may decline to decide the substantive dispute and refer the parties to the arbitration if the clause fulfils the form requirements under lex fori. Suppose country Y, a signatory to the New York Convention, is the seat of arbitration. A persistently disputes the formal validity of the arbitration clause before the arbitral tribunal. Now the question arises that under which law the tribunal would decide the issue? Most probably, it would decide the issue under the lex arbitri and would refuse to give effect to the arbitration clause because it does not fulfil the form requirements of the New York Convention.9 Although the New York Convention is only applicable to state courts and not to arbitrators; notwithstanding, the arbitrators are expected to take every reasonable step to render an enforceable award. If the same issue is raised before the court of state Y, it will certainly decide the issue under the lex arbitri8 and would set aside or annul the award, if any, made by the tribunal for the lack of valid arbitration agreement. And it is unlikely, though not necessarily, that the award having been set aside by the court of the seat of arbitration would be recognised and enforced by the court of another country party to the New York Convention.10 Suppose in this example, if the law of country Y contains more lenient requirements than those stipulated by the New York Convention as to the formal validity of the arbitration agreement, even then B may not be able to avoid “the requirement that there is an arbitration agreement signed by both parties or a mutual exchange in writing11 [……] by applying the most favourable-right provision”.12 In order to avert such uncertainties resulting from potential applicable conflicting laws, a writer suggests that local laws and standards should not be applied in order to determine the formal validity of an arbitration agreement, rather the “international standpoint”—determining the issue through the eyes of businessmen and parties engaged in international business and trade—should be adopted, so that certainty and foreseeability in international trade can be achieved.13
B. The Law Applicable to the Substantive Validity
The various national laws and international conventions adopt different approaches to determine the law applicable to all other issues pertaining to an arbitration agreement. Article V(1)(a) of the New York Convention provides that enforcement may be refused where:
“[the arbitration] agreement is not valid under the law to which the parties have subjected it to, failing any indication thereon, under the law of the country where the award was made.” [Emphasis added]
According to this Article, in order to determine the validity of the arbitration agreement, the priority must be given to the applicable law chosen by the parties. If no such choice as to the proper law of the agreement has been made by the parties then the law of the seat of arbitration would be applicable.14 But this conflict of laws rule deals with the issue at a post-award stage. What approach should be taken at a pre-award stage? If a different criterion is adopted at the pre-award stage, it may give rise to the possibility of conflicting decisions. So which law, in absence of the express choice made by the parties, will govern the arbitration agreement at the pre-award stage? Blessing identified nine different approaches as to how to determine the applicable law.15 The practical choice appears to be between lex causae or lex arbitri.16 It is assumed, not necessarily in all cases, that it is the same law as that which govern the substantive contract (lex causae),17 since an arbitration clause is one of the clauses of the contract then why the law applicable to the substantive issues should not also govern the clause. But there is a strong tendency (also strengthened by the New York Convention) to apply the law of the seat of arbitration to determine the substantive validity, especially in those cases where the clause would be invalid under the lex causae.18 The intention is to compel the parties to honour their contractual commitments as well as to shield against the foreseeable repercussions at the post-award stages. No such uncertainty exists under few laws.19 There is a noticeable penchant to apply de-nationalized approach to the same issue so that due weight might be given to the demands of international trade, to reasonable and fair expectation of the parties and to the common intent expressed by them.20
3. The Law Governing the Arbitration
The law governing the arbitration or curial law deals with the procedural matters such as the manner in which the reference is to be conducted, the procedural powers and duties of the arbitral tribunal, questions of evidence, interim measures, form and validity of the arbitral award; finality of the award, etc. After the constitution of an arbitral tribunal, the first thing to do, particularly in case of a non-institutional arbitration, is to determine or ascertain the law or rules in accordance with which the arbitral proceedings are to be conducted. For this purpose also, the choice of the parties is paramount. As mentioned earlier, the parties are free to choose the law or rules to govern the arbitral proceedings.21 In absence of their express choice, the arbitral tribunal, generally, is empowered to choose the procedural law.22 It may be different from that which governs the arbitration agreement itself or the substantive issues between the parties. The choice may be express or implied (e.g., implied choice of the procedural rules of the chosen arbitral institution). But the choice of the applicable procedural law or rules, in case of non-institutional arbitration, is rarely made in practice; therefore, the procedural rules have to be determined by the tribunal. Let us consider an example. Suppose A and B entered into a trade agreement. They agreed that all disputes arising out of or in connection with the agreement shall be finally settled through ad hoc arbitration in state X and the trade agreement will be governed by the law of state Y. It is quite apparent that the parties did not choose expressly the law applicable to the arbitral proceedings. Now, in case of disagreement between the parties as to the applicable procedural law, the question arises that under which law the arbitral proceedings are to be governed? Whether the proceedings should be governed by the lex arbitri (law of the seat of the arbitration); or by the law of state Y (lex causae); or by some other rules whether national or a-national (de-localized)? There is no any cut and dry principle to resolve this issue in black and white. There are mainly two theories dealing with this issue. Let us consider them one by one.
A. The Seat Theory
According to the seat theory, international arbitration is governed by the law of the place of the arbitration (lex arbitri). The parties’ reference to the place of arbitration is deemed to be an implied choice of lex arbitri. In this way, an international arbitration becomes embedded into an established legal system instead of “floating in the transnational firmament, unconnected with any municipal system of law”.23 There are numerous policy reasons underpinning the seat theory. I will discuss here few of them. First, every country, being sovereign, has full power to regulate every activity within its boundaries. International commercial arbitration is not an exception to it. Secondly, the arbitral proceedings are supervised by local courts of the seat of arbitration, so that fundamental principles of justice including nemo judex in propria sua causa debet esse, audi alteram partem, justice must not only be done but must seem to be done, due process of law, etc., may be observed. If an arbitral tribunal fails to observe these procedural minima, it can be remedified promptly by having recourse to the local courts otherwise it may akin to justice delayed justice denied. Therefore “[e]very arbitration must have a seat or locus arbitri or forum which subjects its procedural rules to the municipal law where is there in force”.24 Thirdly, a reasonable control over international arbitration, especially in developing countries, is necessary for the regulation of economic or commercial activities, protection of weaker parties, etc.
Delocalisation means to detach an international arbitration from the control of the place in which it is held.25 The proponents of this theory are of the view that lack of harmony in international arbitration laws of different countries adds inconvenience to the smooth conduct of the arbitration. An international arbitration should not be inhibited by interference of local courts of the place of the arbitration. A place of the arbitration is chosen due to its ‘neutral’ character, not because of any attraction towards its procedural laws. “[A]n international arbitration tribunal is a non-national institution; it owes no allegiance to any sovereign State; it has no lex fori in the conventional sense.”26 “According to [international custom] commercial arbitration may be entirely ‘detached’ or separated from ‘the national laws’ of the parties: it shall only be governed by the rules of arbitration chosen by the parties or referred to by the parties in their agreement.”27 Therefore, “the law of the place of arbitration is not the law governing always and necessarily the arbitration proceedings.”28 According to this theory, any defect in the conduct of the arbitration can be remedified at the time of enforcement of the awards.
Here a question arises that whether an international arbitration should completely be delocalised? It is agreed that local courts of seat of arbitration should be supportive and should interfere with the arbitration as least as possible. A complete detachment of international arbitration from lex arbitri is not desirable. First, because the assistance of local courts of the seat is needed for different purposes, e.g., interim measures, summoning witnesses, order for production of documents, order for inspection of property, etc.29 An arbitral tribunal lacks coercive force; therefore, it can not exercise these powers. Secondly, in order to avoid multiple jeopardy, inconsistency of judgements of foreign courts and to increase economic efficiency, it is necessary to allow lex arbitri to exercise control over international arbitration.30 Thirdly, arbitration laws of most of countries contain mandatory provisions with which international arbitration held on their territories has to comply with. These mandatory provisions usually deal with fundamental public policy issues, consequences of failure to observe procedural minima by an arbitral tribunal, etc.
A number of laws provide that the relevant country’s procedural rules apply automatically to an arbitration held on its territory subject to the express choice of the parties and the rules selected to govern the arbitration.31 The New York Convention, a landmark achievement in the field of international arbitration, gives the express role to lex arbitri. Under the Convention, recognition and enforcement of an arbitral award may be refused if the arbitration agreement “is not valid […] under the law of the country where the award was made;”32 or “the composition of the arbitral authority or the arbitral procedure was not in accordance with […] the law of the country where the arbitration took place;”33 or the award “has been set aside or suspended by a competent authority of the country in which […] that award was made.”34
The parties can choose the foreign procedural law, e.g., the arbitration held in country X subject to the procedural law of country Y.35 But such a choice is both “unnecessary” and “unhelpful”. The arbitration would still remain subject to mandatory provisions of the lex arbitri, if any.
4. The Law Governing the Substantive Issues in Dispute
As discussed earlier, the parties are at liberty to choose the substantive law to govern their substantive rights and obligations.36 The choice may be express or implied (either implied positive or “implied negative” choice).37 The substantive law may or may not be different from those governing the capacity of the parties, arbitration agreement, arbitral proceedings or recognition and enforcement of arbitral awards. In absence of the agreement of the parties on the applicable substantive law, the arbitral tribunal is normally empowered to choose, either directly or indirectly (through conflict of laws rules) the law or rules of law applicable to the substantive issues.38 There may be more than one governing laws since the parties are entitled to split the contract and subject a part of it to a specified applicable law, leaving the remainder of the contract to be governed by the law(s) or rules of law to be chosen by the arbitral tribunal;39 or subject different aspects of the contract to different laws.40 There are a variety of laws or legal rules available to the parties to be chosen from, e.g., national laws, public international law, general principles of laws, concurrent or combined laws, transnational law (e.g., lex mercatoria, etc.), etc. But the parties’ choice must be bona fide and legal and must not offend against the public policy.41 The parties’ autonomy is subject also to mandatory provisions of law. The mandatory provisions may be national (contained in lex loci arbitri, lex causae or the law of a third country or of place(s) where recognition or enforcement of the award is sought) or supranational (e.g., resolutions of UN Security Council).42
The choice of a national law as the proper law of the contract entails many benefits. It, being a comprehensive system as opposed to the abstract principles of law, gives certainty and predictability to the legal relationship between the parties. Therefore, in most international commercial contracts, it is usual to choose a legal system as the substantive law. But such a choice may back fire, e.g., if the law is changed, it may change the contractual relationship between the parties as well. This problem becomes very acute especially in a case where one of the parties to an international contract is a state or state-controlled entity. A state may not be willing to submit itself to a foreign legal system; therefore, in most of such cases, the state party’s own legal system is chosen as the substantive law. But the state may subsequently change its laws to the detriment of the other party to the contract. Therefore, various measures may be adopted in such cases, e.g., inclusion of revision clauses, stabilisation clauses, force majeure clauses, etc. One of the solutions is to choose the state party’s laws in combination with public international law, general principles of law recognised by civilized nations, transnational laws, etc. In this way the national laws are subjected to “international equity control”. If the state changes its law unilaterally, the other party may get fair compensation or any other available remedy under international law.43
There is also a noticeable tendency in international commercial contracts for lex mercatoria—the anational or transnational commercial rules—to be chosen as the substantive rules of law instead of a national legal system so that the above-mentioned dangers can be avoided.44 Many of the transnational commercial rules have been privately codified, e.g., the UNIDROIT Principles. These anational or transnational rules have been criticized as ill-defined, uncertain, elusive and even “mythical”.45 Therefore it is suggested that these rules should only be used in conjunction with the laws. Quite opposite to this view, it was held in an ICC award that “[r]ather than vague principles or general guidelines, the UNIDROIT Principles are mostly constituted by clearly enunciated and specific rules coherently organised in a systematic way.”46
5. The Law Governing Recognition and Enforcement of International Arbitral Awards
If an international arbitral award is not performed voluntarily by the losing party, it is usually enforced by legal proceedings in a national court(s). In addition to the national laws, there are various international conventions which govern recognition and enforcement of international arbitral awards. In order to have the award recognised and enforced, relevant requirements of the applicable convention or national law have to be met. There may be more than one country (in which the losing party has, or is thought to have, assets) with same, similar or different laws where enforcement of the award needs to be sought. The law(s) governing the recognition and enforcement of the award may be different from lex arbitri (if the place of enforcement is different from the seat of arbitration), lex causae or that governing the arbitration agreement. Therefore, these laws may supplement or supplant one another.
In this part of the article, I will briefly discuss few provisions of the New York Convention (“the Convention”)—“the single most important pillar on which the edifice of international arbitration rests”.47 The Convention applies only to foreign awards48, not to domestic awards. In order to obtain the recognition and enforcement, certain formal requirements have to be met.49 The party seeking the recognition and enforcement may in certain circumstances avoid the more stringent requirements of the Convention by invoking comparatively lenient provisions of the law of the enforcing country, if any, under Art. VII of the Convention (most favourable right provision).
Article V of the Convention deals with various grounds of refusal to recognise and enforce the awards. Sometimes the award may be valid under lex arbitri or lex causae but invalid under the Convention and vice versa. Under Article V(1)(a) of the Convention, recognition and enforcement of the award may be refused if the arbitration agreement is not valid under the law chosen by the parties or, failing any such indication, under lex arbitri. Suppose the agreement is valid under lex arbitri, if applicable, still recognition and enforcement of the award would be refused if the dispute giving rise to the award is not arbitrable under the law of the enforcing country.50 Therefore Jan Paulsson suggested that if the arbitration agreement is otherwise valid, “[s]ubparagraph V (2) (a) shall not prevent recognition and enforcement unless the non-arbitrability of the subject matter is a matter of such fundamental importance that recognition and enforcement would also violate Subparagraph V (2) (b).”51
Under Article V(1)(e) of the Convention, recognition and enforcement of the award may be refused if it, inter alia, “has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.” This provision of the Convention has much been criticized by the scholars. The problem is that it does not restrict the grounds on which an award may be set aside or suspended by the court of the country in which (seat of the arbitration), or under the law of which, that award was made. Therefore it is said that it is against the true internationalisation of arbitration because all grounds of nullity available against domestic awards can be invoked to oppose recognition and enforcement of international arbitral awards abroad. The courts in France, USA and Belgium, therefore, have recognised and enforced the awards even though they have been set aside by the courts at the seat of the arbitration. One of the reasons is that the Article V of the Convention is not mandatory. However, generally, an award which is set aside by the court of the seat of the arbitration is also refused recognition and enforcement abroad.
In this article, it has been discussed that there are at least five different systems of law which may govern different aspects of a transnational arbitration. It highlights how the various systems of law, rules and convention interact with one another in supplementary, corrective or conflicting fashion.
- Blessing, ‘Choice of Substantive Law in International Arbitration’, 14/2 JIA (1997), 39 at p. 56. See also Yves Derains and Eric A. Schwartz, A Guide to the ICC Rules of Arbitration 2nd edn. (Kluwer Law International, 2005), 234-235.
- Friedrich K Juenger, ‘Localising Provisions in International Contracts: Efficiency, Utility and the Limitation of International Risk’, (1994) 68 Australian LJ 649. See also Jonathan Harris, ‘Contractual Freedom in the Conflict of Law’, OJLS 2000 20 (247). For an outstanding work in this field, see Peter Nygh, Autonomy in International Contracts 1st edn. (Oxford, 1999).
- See Friedrich, Localising Provision, 649.
- See, e.g., the New York Convention, Art. V (1) (a); the Model Law, Art. 34 (2) (a) (i), 36 (1) (a) (i).
- See, e.g., Art. VI-VII (2) of the European Convention on International Commercial Arbitration, 1961.
- For the detail, see Lew J.D.M. et al., Comparative International Commercial Arbitration 1st edn. (Kluwer Law International: the Hague, 2003), paras 6-26 to 6-36.
- See the New York Convention, Art. II; the Model Law, Art. 7; the English Arbitration Act, section 5.
- The New York Convention, Art. V (1) (a).
- Ibid., Art. II (2).
- Ibid., Art. V (1) (e).
- See fn.13 above.
- OLG Brandenburgh, 13 June 2002, No. 8 Sch 2/01, XXIX YBCA (2004), 747. See the New York Convention, Art. VII.1 on the most favourable-right clause.
- Blessing, ‘The Law Applicable to the Arbitration Clause’, ICCA Congress Series no. 9, 169, 173.
- See also Model Law, Art. 36 (1) (a) (i).
- Blessing, supra, fn. 13, 169.
- Nigel Blackaby, et al., Redfern & Hunter on International Arbitration 6th edn. (Oxford, 2015), para 2.84.
- The English approach. See Union of India v. McDonnell Douglas Corp  2 Lloyd’s Rep.48; Lew J.D.M., ‘The Law Applicable to the Form and Substance of the Arbitration Clause’, (1999) 9 ICCA Congress Series 114.
- See, e.g., ICC Case No.6162; XL Insurance Ltd v. Owens Corning  2 Lloyd’s Rep.500.
- See, e.g., the Swedish Arbitration Act, section 48; Swiss PIL, Art. 178 (2).
- Blessing, supra, fn. 13, 175. On French approach, see Comite populaire de la municipalite de Khomas El Mergeb v. Dalico Contractors, 121 Clunet 432 (1994).
- The procedural rules may be national, institutional, non-institutional, de-nationalized or purely contractual rules.
- See, e.g., the Model Law, Art. 19; the English Arbitration Act, section. 34.
- Bank Mellat v. Helliniki Techniki SA  Q.B. 291; Enka Insaat Ve Sanayi AS v OOO "Insurance Company Chubb" & Ors (Rev 1)  EWCA Civ 574
- Naviera Amazonica Peruana SA v. Compania Internacional de Seguros del Peru, (unpublished), summary in the Financial Times of 13 November 1987, XIII YBCA (1988) 156 at p. 159.
- For example ICSID Arbitration.
- Lew J.D.M., Applicable Law in International Commercial Arbitration—A Study in Commercial Arbitration Awards 1st edn. (Oxford, 1978), 535. See also Lew J.D.M., ‘Achieving the Dream: Autonomous Arbitration’, 22/2 Arb. Intl (2006) 179.
- ICC 2nd Preliminary Award in case no 1512, January 14, 1970, V YBCA (1980) 174, at p. 176; Liamco case, 20 ILM (1981) 1, at p. 42.
- SEEE v. Banque Mondiale, Republique de Yougoslavie et Etat Francasis, C. d’Appel de Rouen, November 13, 1984, 112 JDI (1985) 473 at p. 487. (translation)
- The Swiss PIL, Art. 183; the Netherlands Arbitration Act, Art. 1022 (2); the English Arbitration Act, section 44 (1) & (2); the Model Law, Art. 9.
- Roy Goode, ‘The Role of the Lex Arbitri in International Commercial Arbitration’, 17/1 Arb. Intl (2001) 19.
- See the English Arbitration Act, section 2.1; the Swiss PIL, Chapter 12, Art. 176; the Model Law, Art.1.
- The New York Convention, Art. V (1) (a). See also the Model Law, Art. 36 (1) (a) (i).
- Ibid., Art. V (1) (d). The Model Law, Art. 36 (1) (a) (iv).
- Ibid., Art. (1) (e). The Model Law, Art. 36 (1) (a) (v).
- See, e.g., the Swiss PIL, Ch. 12, Art. 182; French New Civil Code, Art. 1494 (1).
- See, eg., the UNCITRAL Rules, Art. 33.1.
- Blessing, supra, fn. 1, 39.
- See the Model Law, Art. 28; the UNCITRAL Arbitration Rules, Art. 33; the Swiss Rules, Art. 33.
- See Tomkinson v. First Pennsylvania Banking and Trust Co.  AC 1007; the Rome Convention, Art. 3.1.
- See Dicey and Morris, The Conflict of Laws 12th edn. (Oxford, 1993), 1207.
- See Soleimany v. Soleimany  Q.B. 785.
- Blessing, ‘Mandatory Rules of Law Versus Party Autonomy in International Arbitration’, 14/4 JIA (1997), 23.
- See BPP case, 53 ILR (1979) 297; Aminoil case, 21 ILM (1982) 976; Liamco case, 20 ILM (1981) 1; Texaco case, 17 ILM (1978) 1.
- See Jean Flavian Lalive, ‘Contracts Between a State or a state Agency and a Foreign Company’, (1964) ICLQ 987. See also ICC Case No. 8385 (1995).
- See Delaume, ‘The Proper Law of State Contracts and the Lex Mercatoria: A Reappraisal’, ICSID Review-FILJ, No 3 (1988), 79.
- ICC Case No. 7110 (1995); ICC CT. Bull., Vol. 10, No. 2 (1999), p.39. See also Fortier L.J., ‘The New, New Lex Mercatoria, or, Back to the Future’, 17 Arb. Intl (2001) 121.
- Watter, ‘The Present Status of the International Court of Arbitration of the ICC: An Appraisal’, (1990) 1 American Review of International Arbitration 91.
- The New York Convention, Art. I (1)
- Ibid., Art. IV.
- Ibid., Art. V (2) (a).
- Jan Paulsson, ‘Arbitrability, Still Through a Glass Darkly, in Arbitration in the New Decade’, (Special Supplement ICC Int’I Ct. of Arb. Bull., 1999) 95 at p. 104.